Context

• Recently, the United Nations General Assembly (UNGA) adopted a resolution approving the text of a proposed treaty for the prevention and punishment of crimes against humanity (CAH).
• The journey to this point began in 2019 when the International Law Commission submitted the draft text to the Sixth Committee of the UNGA.
• This development addresses a crucial gap in international criminal law and lays the foundation for a robust legal framework to prevent and punish CAH globally.

An Analysis of the Accountability Gap in International Law

• Lack of a Legal Framework
  • Crimes against humanity (CAH) are among the most egregious violations of international law, yet the legal framework governing them lacks the comprehensiveness and clarity afforded to other international crimes like genocide and war crimes.
  • This gap stems from the absence of a dedicated treaty specifically addressing CAH, unlike the Genocide Convention of 1948 and the Geneva Conventions of 1949, which provide clear mandates and obligations for preventing and prosecuting these crimes.
  • CAH, despite being codified in the Rome Statute of the International Criminal Court (ICC), suffer from limitations in enforcement and scope.
    • The Rome Statute, adopted in 1998, is the treaty that established the ICC to prosecute individuals for genocide, war crimes, crimes against humanity, and aggression.
    • It aims to ensure accountability for serious international crimes and promote global justice.
• The Jurisdictional Challenge of the ICC
  • One of the primary accountability challenges lies in the ICC’s limited jurisdiction.
  • As a treaty-based institution, the ICC can only exercise jurisdiction over crimes committed on the territory of its member states or by their nationals, unless the United Nations Security Council refers a case to it.
  • This limitation excludes a significant number of states, including major global players, from the ICC’s reach
  • It creates a jurisdictional void where perpetrators in non-member states can evade justice.
  • Without a dedicated treaty obligating broader state cooperation, many CAH cases remain unaddressed.
• Individual Versus State Accountability
  • Another issue is the Rome Statute’s focus on individual criminal responsibility, which, while vital, does not account for state accountability.
  • Genocide and war crimes treaties create state obligations to prevent and punish these crimes, enabling legal actions at the state level.
  • For example, The Gambia's 2019 case against Myanmar at the International Court of Justice (ICJ) was made possible because the Genocide Convention includes provisions for state responsibility.
  • A CAH treaty could similarly empower states and international bodies to hold governments accountable for failing to prevent CAH, reinforcing the principle that states share responsibility for safeguarding human rights.

India’s Position on the CAH Treaty

• A Cautious Approach
  • India’s stance on the proposed CAH treaty reflects a cautious and calculated approach, rooted in its broader concerns about international criminal justice mechanisms.
  • As a non-signatory to the Rome Statute of the ICC, India has consistently expressed reservations about the ICC’s jurisdiction, the powers of its prosecutor, and the role of the United Nations Security Council (UNSC) in its framework.
  • These concerns shape India’s scepticism toward a CAH treaty, even as the international community advances efforts to address the gaps in prosecuting such grave crimes.
• Scepticism Toward the ICC Framework
  • India’s primary critique of the ICC lies in its perceived infringement on national sovereignty.
  • The ICC, through its jurisdiction, can investigate and prosecute individuals from states that are not party to the Rome Statute if authorised by the UNSC.
  • India views this provision as a potential overreach, particularly when the UNSC’s influence is often shaped by geopolitical considerations.
  • Additionally, India has expressed concerns about the prosecutor’s discretionary powers, which it argues could lead to selective justice or politically motivated investigations.
  • These reservations inform India’s apprehension that a CAH treaty might inadvertently extend the ICC’s influence or create overlapping jurisdictions that undermine state sovereignty.
• Disagreements on the Definition and Scope of CAH
  • India’s position on CAH is also influenced by its divergence from the existing definitions and scope proposed in international forums.
  • While the Rome Statute includes crimes such as enforced disappearance, India opposes its inclusion in the CAH framework, arguing that it is not universally applicable or adequately defined.
  • Conversely, India has strongly advocated for the inclusion of terrorism as a crime against humanity, emphasising its global threat and the necessity for international recognition of its severity.
  • India has also criticised the exclusion of nuclear weapons and other weapons of mass destruction from the definition of war crimes under the Rome Statute, further fuelling its scepticism about the comprehensiveness of the proposed treaty.
• Preference for National Jurisdiction
  • India’s resistance to joining international treaties like the Rome Statute is rooted in its belief that national legislations and judicial systems are better suited to address crimes against humanity and other international crimes.
  • At the UN General Assembly, India has consistently emphasised the primacy of domestic jurisdiction, arguing that local courts, being more attuned to the specific social and political contexts, are better equipped to ensure justice.
  • However, this argument reveals a contradiction: India lacks comprehensive domestic legislation addressing international crimes, including CAH, leaving a critical gap in its legal framework.
• Calls for Further Deliberation
  • For the past five years, India has advocated for an in-depth study and thorough discussions on the need for a CAH treaty.
  • It has argued that duplicating the regime established under the Rome Statute could lead to inefficiencies and redundancies.
  • India’s stance reflects a broader caution about the potential proliferation of international legal mechanisms that may overlap or conflict with existing frameworks.
  • However, this call for deliberation could also be interpreted as a delay tactic, given India’s longstanding reservations about international criminal justice frameworks.

The Way Forward for India

• To align its stated preference for national jurisdiction with its international obligations, India must prioritise the incorporation of CAH and other international crimes into its domestic legal framework.
• This move would not only address the current legal lacuna but also strengthen India’s credibility on the global stage.
• Moreover, by actively engaging in negotiations on the CAH treaty, India could advocate for the inclusion of issues it deems critical, such as terrorism and nuclear weapons, while shaping the treaty to reflect its interests and concerns.
• Taking a proactive role in the CAH treaty process would allow India to reaffirm its commitment to justice and human rights, positioning itself as a leader in the fight against impunity for grave international crimes.

Conclusion

• The adoption of the resolution for a CAH treaty is a landmark step in the international community’s efforts to combat impunity for crimes against humanity.
• While India’s reservations reflect legitimate concerns, its lack of domestic legislation addressing international crimes undermines its position.
• By enacting comprehensive laws against CAH, India can not only address this inconsistency but also lead the way in the global quest for justice, embodying the role of a true global leader.